Thursday, April 30, 2009
The Canadian Bar Association once again has called for the repatriation of Omar Khadr.
The CBA is a national association representing 38,000 jurists across Canada. We work to promote the Rule of Law and improve the administration of justice in Canada and around the world. It is in this light that we have protested Mr. Khadr’s subjection to the military tribunal process in Guantánamo Bay and called for his repatriation. We take no position on Mr. Khadr’s guilt or innocence. Our concern is that he receive a fair trial in accordance with all procedural protections and special considerations to be afforded a minor, as required by domestic and international law. Canada’s justice system is well equipped to fairly and openly assess Mr. Khadr’s criminal culpability, in a manner that reflects his status as a minor at the relevant time.
...Yesterday, Canada’s Federal Court ruled the ongoing refusal of the Government of Canada to request Mr. Khadr’s repatriation to Canada “offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter”. It ordered the government to seek Khadr’s repatriation as soon as practicable.1
...Prime Minister, the time has come for the Canadian government to advise the U.S. that it is willing to negotiate the terms of Mr. Khadr’s repatriation to Canada to face Canadian justice. In turn, Mr. President, we urge the U.S. government to negotiate the terms of Mr. Khadr’s repatriation with the Canadian government and to transfer available evidence respecting his conduct to the Canadian government. We urge you to come to an agreement that recognizes international human rights obligations, due process and the Rule of Law, and the desirability of ensuring the national security of both countries.
Wednesday, April 29, 2009
Monday, April 27, 2009
As noted last week, effective today, British media has new-found access to the nation's Family Courts, which had previously been closed to the press.
If judges and court staff were ready for what has been hailed as a revolution in the family courts, lawyers at Barnet’s Civil and Family Court Centre were slightly taken by surprise by the arrival of the media.
Two cases had to be adjourned while lawyers discussed whether to oppose the admittance of The Times, but both, in the end, agreed — realising that stringent reporting restrictions remain in place.
After decades of holding such hearings behind closed doors, no one quite knew what to do. John Tughan, counsel for Haringey — the local authority where Baby P died — at least had on him the guidance on admitting the media just issued by Britain’s most senior judge.
But he confessed to Judge Marcia Levy: “I don’t know what our position is . . . I simply don’t know. I was asking for ten minutes to take instructions from the team manager.”
The judge, who was preparing to give an hour-long judgment in a case involving two young children, said that neither their names, nor those of other children involved, could be mentioned; nor those of the parents, nor schools, places or anyone else connected with them that would enable them to be identified.
The indispensible Cathie from Canada:
Sunday, April 26, 2009
CTV News reports today that Stephen Harper's Conservative government continues to hedge on whether it will abide by an April 23, 2009 Federal Court ruling, require it to formally request the repatriation of Omar Khadr, a Canadian citizen confined at Guantanamo Bay since 2002:
 Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents’ possession. I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States...... Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation “for the purpose of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a fair and reasonable investigation” and harms “the rights and dignity of the suspect” (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT.... Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Art. 39). Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Art. 40.1). The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them. Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family. Canada had a duty to take all appropriate measures to promote Mr. Khadr’s physical, psychological and social recovery.... Clearly, Canada was obliged to recognize that Mr. Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr. Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face.... I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely,the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter. The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.
Also see Dave at Galloping Beaver, who surgically dissects the case against Khadr, and notes:
Not much of a reason.
I'd highly recommend the helpful analysis of this ruling from McGill University's Human Rights and Legal Pluralism blog:
This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances.
...the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter....
... as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.
- Garry J. Wise, Toronto
CBC reports today on potent anti-spam legislation introduced Friday by Canada's Conservative government.
In the article, Industry Minister Tony Clement commented on the proposed Electronic Commerce Protection Act:
... Clement said the new legislation would give the government more power to prosecute spammers, and help protect consumers and businesses.
"Our proposed Electronic Commerce Protection Act will deter the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada, and will help drive spammers out of Canada," he said in a speech to the Greater Toronto Marketing Alliance, before the legislation was introduced.
The act would grant the Canadian Radio-television and Telecommunications Commission expanded powers to deal with spammers, including the ability to impose fines of $1 million against individuals and $10 million against businesses, Clement said Friday.
(h/t - Toronto Marketing Blog)
- Garry J. Wise, Toronto
Talk Left's Big Tent Democrat:
Friday, April 24, 2009
U.K Lawyers concerned that Open divorce courts will lead warring spouses to 'blackmail.'
- Garry J. Wise, Toronto
From Andrew Sullivan:
To put this in plain English: We had a president determined to torture a prisoner to get false evidence on which to justify a war.
And apparently, additional photographs documenting U.S. abuse of detainees in Guantanamo and Iraq are about to be releaased by the U.S. government, in response to litigation by the American Civil Liberties Union.
- Garry J. Wise, Toronto
No further comment necessary, I hope.
- Garry J. Wise, Toronto
Thursday, April 23, 2009
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.
- Garry J. Wise, Toronto
UPDATE: October 1, 2009The provincial government announced yesterday that the Ontario drivers' cell phone ban will come into effect October 26, 2009.
Wednesday, April 22, 2009
(h.t - Susan M)
- Garry J. Wise, Toronto
Ontario's Small Claims Courts, which are the busiest civil courts in the Province, will be getting considerably busier on January 1, 2010.
As we noted in our December 11, 2009 post, the arrival of the new year will bring an increase in the Court’s maximum monetary jurisdiction from $10,000 to $25,000 and a significant influx of new, larger cases is likely to follow.
The increased Claim limit has been under consideration for quite some time. In November 2007, former Associate Chief Justice of Ontario, Coulter Osborne, who headed the Civil Justice Reform project committee, submitted his findings and recommendations to the Ministry of Attorney General, including a recommended increase in the monetary limit in Ontario Small Claims Courts proceedings.
The recommendations were intended to enhance access to justice for Ontario residents by reducing the legal costs of litigation, and simplifying the prosecution of smaller, civil actions in the Province.
The changes ahead will bring Ontario in line with British Columbia, Alberta, the Yukon and Nova Scotia, all of which have a $25,000 Small Claims Court limit. Saskatchewan, too, will soon follow suit.
Ontario's Small Claims Court is a branch of the province's Superior Court of Justice. Examples of typical claims filed in the Small Claims Court include actions related to:
- unpaid accounts for goods or services;
- unpaid loans and rent;
- compensation for property damage;
- wrongful dismissal of employment;
- damages for personal injuries;
- damages for breach of contract.
The majority of the cases in Ontario's Small Claims courts are heard by Deputy Judges, who are lawyers appointed to preside, part-time, over hearings conducted at the Court.
The imminent raise in monetary jurisdiction will likely lead to a significant increase in the Court's case loads.
According to the Osborne report, 75,041 new proceedings were commenced in Ontario's Small Claims Court in 2005-2006. By comparison, during the same period, only 63,251 new civil proceedings were commenced the province's Superior Courts.
Of those 63,251 Superior Court cases, 6,555 included claims for amounts between $10,001 and $25,000, and would therefore be typical of cases likely to proceed in the expanded Small Claims Court system.
According to the Osborne Committee, the increased jurisdiction limit is likely to result in a need for additional facilities, court staff and judges.
Toronto, for example, has only one Small Claims Court, housed on one floor in a small office building at 47 Sheppard Avenue East, in the city’s Yonge and Sheppard area. According to a recent Ministry of Attorney General press release, however, a new court house is anticipated to be built in Toronto's west end. Whether the new facility will house a Small Claims Court remains unclear.
No plans have been announced yet for the appointment of additional deputy judges to service the expanded Courts, nor have amendments to the Court's Rules and procedures yet been tabled.
Time is running short for the announcement of such changes.
Potential litigants in these "smaller" $10,000.00 to $25,0000.00 claims already face daunting questions on how to proceed:
- In which of the Province's courts should new legal proceedings now be commenced?
- Will it be more cost-effective or strategically wise to simply wait until January to start new claims (so long as no limitation periods will pass in the interim)?
- If a proceeding is commenced today in Superior Court that will be within the future Small Claims limit, will there be a subsequent requirement to transfer courts?
- If an action is commenced today for $10,000.00 in Small Claims Court, will it be possible - or simple - to amend a Claim in January to increase the sum requested?
With little, specific guidance from the Attorney General's office as to the transition ahead, access to justice is not benefiting from a current paucity of information.
The expansion of the Court will have significant procedural and practical implication that must be addressed by current and future litigants - and legal professionals:
- the ability of successful litigants to recover partial or substantial indemnity for their legal fees is significantly reduced in Small Claims Courts. Costs awards in the Court are currently capped at 15% of the value of a claim. As a result, the maximum costs award (i.e., on a $25,000 claim) will be $3,750.00;
- Junior lawyers and articling students will require training in Small Claims Court advocacy. “Firms will have to promote the competency of their articling students to handle these files,” says Joshua Krane, an articling student with Gowling Lafleur Henderson LLP, in his March 2009 Canadian Lawyer magazine article on the pending changes. “Firms that are successful at doing so may reap the benefits of a vigorous and profitable small claims practice.”
- As noted, transitional procedures have yet to be announced to clarify whether there will be mandatory or optional transfer to Small Claims Courts of existing Superior Court actions in which $25,000.00 or less has been claimed. Further, the procedures and costs consequences of effecting such file transfers remain undefined;
- The fate of mandatory mediation in the Court after January 1st is unclear. Mediation has emerged as an extremely effective tool for achieving settlements in many types of Superior Court actions. While Small Claims Courts will continue to require mandatory settlement conferences before Judges and Deputy Judges, these differ in procedure, duration and scope from Superior Court mediations, which are typically convened with private mediators with specific expertise in the subject matter of the claim involved. British Columbia's Small Claims Court Rules provide for differing types of mediation, depending on the amount claimed in a proceeding;
- Amendments will likely be required to Ontario's Rules of the Small Claims Court to expand documentary disclosure obligations and to enable case management of complex cases;
- Questions abound as to whether all Small Claims actions will be treated alike under the new system. Will there be different procedural tiers, determined by the sums in dispute, as is the case in B.C.?
Some concern has additionally been voiced as to whether the Court's contingent of Deputy Judges has adequate judicial expertise and training to address the increased complexity of the higher-value cases that will soon be before the Court.
In a February 2009 article, Sun Media legal columnist Alan Shanoff noted that the new $25,000 monetary limit will likely bring larger and more complicated contract cases, defamation suits, and medical malpractice claims to the Court's docket.
As Mr. Shanoff astutely cautioned, "Certainly, the public deserves a full-time professional roster of judges and proper facilities. Let's not trade one set of problems for another."
- Bill Rogers, Shashi Raina and Garry J. Wise, Toronto
Not surprisingly, as the facts emerge on the American deployment of "harsh interrogation methods," the Bush Administration's rationale for the use of such tactics appears increasingly thin.
...A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that intelligence agencies and interrogators find evidence of al Qaida-Iraq collaboration... Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."
It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubeida at least 83 times in August 2002 and Khalid Sheik Mohammed 183 times in March 2003 — according to a newly released Justice Department document.
..."Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."
Senior administration officials, however, "blew that off and kept insisting that we'd overlooked something, that the interrogators weren't pushing hard enough, that there had to be something more we could do to get that information..."
This is getting uglier by the day.
- Garry J. Wise, Toronto
A Senate Armed Services Committee report, released yesterday, addresses America's abusive treatment of detainees and the resulting harm to American interests:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
President Barack Obama "elaborated" Tuesday on his position regarding possible criminal investigations arising from recently-released Bush administration "torture memos:"
OBAMA: The OLC memos that were released reflected in my view us losing our moral bearings. ... For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted. With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.
Let's just call this a modest, preliminary step in the right direction.
My radar, however, tells me that the Obama Administration may now simply blame the lawyers for this entire torture mess, and suggest that the buck ought to stop there.
It must not.
- Garry J. Wise, Toronto